'The work begins with a chapter which presents the genesis of the ECHR, which is important for a proper understanding of the Convention system, and this is followed by a chapter on the principles of the ECHR and its Interpretation by the Court. Separate chapters are allocated to the dynamic interpretation of the ECHR and the phenomenon of the Court's judicial activism. The next two chapters concern the controversial margin of appreciation doctrine, stressing the importance of attempts at theoretical study of the interpretation and application of the Convention. A separate chapter is devoted to the principle of consensus and its significance in the interpretation of the Convention. The study ends with a chapter containing some general considerations of the theory of interpretation of the ECtHR.'

'Article 2 of the European Convention on Human Rights (ECHR) in its current form is incomplete and outdated. Due to significant development at a legislative and judicial level, the right to life spans beyond what is enumerated within Article 2. With the belief that Article 2 is still relevant, this book investigates how the right to life can be better protected within Europe. It advocates for the modernisation of Article 2 through codifying legislative and judicial developments relevant to this provision in the form of guidelines. It also considers the improvements that can be made by the Council of Europe (CoE) bodies – the European Court of Human Rights (ECtHR), the Committee of Ministers (CoM), the Parliamentary Assembly of the Council of Europe (PACE) and the CoE Commissioner for Human Rights – to encourage adherence to Article 2 and promote effective remedies to prevent future violations. It uses the experience from four internal European conflicts – the Basque conflict, the Chechen conflict, the Northern Ireland Troubles and the Turkish-Kurdish conflict – to illustrate its points.'

Tuesday, 21 November 2017

The special web page of the website of the European Court on Human Rights that is dedicated to short videos on the Court and its procedures has been further extended. It now also includes new language versions of the film about the Court in Bulgarian, Dutch, Finnish, Greek and Slovak. five key videos are now available in total:

* A film of 15 minutes for a wider audience about what the European Court of Human Rights is and does.

* A video on the European Convention on Human Rights and Fundamental Freedoms and the rights included in it.

'The rise of abusive constitutionalism in Central and Eastern Europe (CEE) has hit the domestic judiciaries particularly hard. Viktor Orbán expanded the size of the Constitutional Court and then packed it, made sure that he can install a new president of the Constitutional Court, ousted the Supreme Court president through a constitutional amendment, disempowered the existing judicial council and created the new institution with power over ordinary judicial appointments. Jaroslav Kaczyński followed the same playbook in Poland. While most scholars have focused primarily on effects of abusive constitutionalism upon the constitutional courts, we argue that the keys to the long-term control of the judiciary are presidents of ordinary courts and judicial councils . The dismissal of the Hungarian Supreme Court President is a perfect example of this logic—by this move Orbán got rid of the most important court president in the country, the head of the Hungarian judicial council and his most vocal critic. Yet, András Baka lodged an application to the ECtHR and won. This article analyses the Grand Chamber judgment in Baka v. Hungary, its implication for the rule of law, and the limits of what the ECtHR can achieve against abusive constitutionalism. It concludes that the Grand Chamber failed on all key fronts. It overlooked the main structural problem behind Mr. Baka’s dismissal (the broad powers of court presidents in CEE), it has blurred the Convention’s understanding of the concept of the rule of law, and it failed in delivering a persuasive judgment firmly based on the existing ECtHR’s case law.'

Thursday, 9 November 2017

The International Commission of Jurists and the Open Society Justice Initiative have published a report on the selection of human rights judges (including at the European Court of Human Rights). The report, entitled 'Strengthening from Within. Law and Practice in the Selection of Human Rights Judges and Commissioners', analyses the practice of selection procedures and tests these against standards of fairness, inclusiveness and transparency. For readers of this blog, chapter 3A on the Strasbourg Court will be of special interest. As one former ECtHR judge is quoted saying in the report, “the procedures at regional level [in the Council of Europe] have improved beyond recognition.” And compared to other regional systems it may indeed be relatively solid. However, problems remain as the rejection of a number of lists of three candidates from a number of countries has shown in the past few years. This is the abstract of the report as a whole:

'National procedures for the selection of regional human rights court judges too often fail to meet standards of fairness, inclusiveness and transparency, a joint Open Society Justice Initiative (OSJI) and ICJ report published today concludes. The report makes recommendations aimed at ensuring that the best qualified candidates are selected as judges of regional human rights courts.

Regional human rights courts and commissions—including the African Court of Human and Peoples’ Rights, the European Court of Human Rights, and the Inter-American Court of Human Rights—are essential safeguards for the rule of law.

Yet despite their importance, the process of selecting the judges and commissioners who sit on these bodies—how they are nominated, vetted, and ultimately selected—remains largely unknown and often shrouded in secrecy. Coupled with broader political efforts to erode international judicial institutions, this secrecy underscores the pressing need to focus on strengthening these systems from within.

This report, Strengthening from Within, responds to that challenge. It shines a light on the processes that states use to nominate and select human rights judges and commissioners. By analyzing the nomination practices of 22 countries, the report documents the ways in which nomination procedures often fall short of the legal frameworks and international standards that should guide them. It also identifies promising practices and offers recommendations for improvement grounded in experience.

An independent judiciary is essential to the rule of law: for national courts, procedures for judicial selection must be fair, transparent, and merit-based. As this report makes clear, the world’s international courts and tribunals are no different.'

'For the fifth time Utrecht University launches the highly successful MOOC 'Human Rights for Open Societies - An Introduction into the European Convention on Human Rights'. This course is for everyone who is interested in the protection of human rights and the idea of open societies. More than 11,500 enthusiastic learners participated in the previous editions of the online course. The new edition of the MOOC starts on 23 October 2017.

Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal.

In this course, Prof Antoine Buyse (Human Rights), Prof Janneke Gerards (Fundamental Rights Law) and Dr Paulien de Morree introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. This international treaty is one of the most successful instruments for protecting human dignity and it is a crucial tool for achieving an open society. In this course you will discover what this treaty is and how it aims to advance human rights and the idea of an open society in Europe.

You will learn when and how people can turn to the European Court of Human Rights to complain about human rights violations and how the Court deals with the difficult human rights dilemmas of today. You will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. This course also addresses the rights of migrants, refugees, and other vulnerable groups. And, of course you will see whether and under what conditions human rights may be restricted.'

'In her manuscript Elisa Ravasi examines how the ECtHR responds to the growing challenges of overlapping legal systems. She focuses, in particular, on the relationship between the ECHR and EU law. First, she systematically analyses 10 years of ECtHR jurisprudence on the principle of equivalent protection and develops an innovative analysis scheme for its application. Afterwards, she examines the equivalency of the human rights protection provided by the ECJ in light of the minimum standards of the ECHR in three specific fields (naming law, ne bis in idem and equality of arms). Finally, she considers whether the presumption of equivalent protection of the ECtHR in favour of the EU is still justified.'

'Under which conditions and to what extent can subsequent State practice legitimately influence the interpretation or even modify international treaties? This issue of general international law has been on the European Court of Human Rights’ agenda for quite some time and is ongoing as evidenced in Hassan v. the United Kingdom. While State practice has traditionally played a role in the interpretation of the Convention, the Court’s methodology to determine under what circumstance and to what extent State practice is able to affect the scope and meaning of the Convention remains uncertain.

This article develops a general theoretical framework, which rationalizes the normative value of subsequent practice in the context of human rights treaty interpretation and sets out its relevant standards. Drawing from the ILC’s recent work on ‘Subsequent agreements and subsequent practice in relation to interpretation of treaties’, the author argues that the Vienna Rules provide a matrix. This perimeter allows sufficient flexibility to accommodate the specific nature of human rights law. The author proposes a normative scale, which can guide the Court in enhancing its methodological consistency. Pursuant to this scale, exigencies for the density of subsequent practice and the degree of acceptance pursuant to Article 38 (1)(b) VCLT vary depending on the nature of the rule and the claimed normative value of State practice. Once State practice meets the required standard, it can sustain the legitimacy of treaty interpretation. On this basis, subsequent practice can serve as a catalyst for the advancement of human rights.'

'This Article examines the state of antidiscrimination education jurisprudence in Europe by analyzing several prominent cases brought before the European Court of Human Rights. In those cases, the applicants alleged that they were discriminated against in the exercise of their right to education based upon their ethnicity in violation of the European Convention on Human Rights. Novel aspects of the cases include the Court’s recognition of the theory of indirect discrimination and its imposition of positive obligations. The cases examined have a broader application that has yet to be explored at the higher education level and by other racial minority groups. Focusing on the legal principles of proportionality, the margin of appreciation, and consensus, this Article analyzes the Court’s reasoning and delineates its framework for cases of this type. The paper offers insights concerning the Court’s theory of racial discrimination, highlights issues arising out of the theory and its application, and concludes with recommendations for the Court’s future trajectory in this realm.'

Tuesday, 10 October 2017

On 21 September 2018, a group of leading academic centres in Europe, including our own Netherlands Institute of Human Rights (SIM), is co-organising a workshop at the European Court of Human Rights in Strasbourg. The workshop is entitled:

Responding to Legitimacy Challenges: Opportunities and Choices for the European Court of Human Rights - Researchers Meet the Court.

In that context, we are now opening a call for papers. The deadline is 15 February 2018. This is a unique opportunity to present and discuss your work at the Court in the presence of judges, members of the Court’s Registry and leading academics!

Content of the Workshop

Challenges confront the European Court of Human Rights (ECtHR) and its procedures, policies and judgments. Criticisms concern the Court’s backlog, its methods of interpretation, its deference to domestic actors – or its lack thereof. Reactions from states include willful partial compliance with judgments or even principled resistance. These challenges have appeared in many different shapes: not just as criticism from State Parties’ governments, but also from domestic courts, academics, civil society organizations and the media.

Against the backdrop of these challenges, we organize a workshop at the European Court of Human Rights to facilitate informal exchanges among academics and members of the Court including the Registry. The aim is to identify and discuss both challenges and possible solutions. The event will address how the ECtHR may respond and does respond by varied means, including:

criteria for case selection;

the Court’s reasoning;

pilot judgments;

dialogues with domestic judiciaries;

the margin of appreciation doctrine.

Call for Papers

We invite abstracts of maximum 400-500 words together with a cover letter by February 15, 2018, in one single PDF document. The abstract should go beyond the standard conference abstract and include the key steps of the argument to be presented. The cover letter should include a 1 paragraph CV and explain the context of the paper: e.g. whether it is part of a PhD project, whether it is based on undertaken empirical research or part of ongoing research etc. Accepted contributors will be asked to provide a 4-5 page position paper, to be presented at a panel of the workshop. Travel funds will be available upon request.

This event is co-organized by PluriCourts of the University of Oslo, The Netherlands Institute of Human Rights (SIM) and the Montaigne Centre at Utrecht University, the Human Rights Centre at Ghent University, Koç University Centre for Global Public Law and Hertie School of Governance, Berlin in collaboration with the European Court of Human Rights.

'The notion of conflict rests at the heart of the judicial function. Judges are routinely asked to resolve disputes and defuse tensions. Yet, when judges are called upon to adjudicate a purported conflict between human rights, they face particular challenges and must address specific questions. Some of these concern the very existence of human rights conflicts. Can human rights really conflict with one another, in terms of mutual incompatibility? Or should human rights be interpreted in harmony with one another? Other questions concern the resolution of real conflicts. To the extent that human rights do conflict, how should these conflicts be resolved? To what extent is balancing desirable? And if it is desirable, which understanding of balancing should judges employ? This book seeks to provide both theoretical and practical answers to these questions.

When Human Rights Clash at the European Court of Human Rights: Conflict or Harmony? debates both the existence and resolution of human rights conflicts, in the specific context of the case law of the European Court of Human Rights. The contributors put forth principled and pragmatic arguments and propose theoretical as well as practical approaches, whilst firmly embedding their proposals in the case law of the European Court. Doing so, this book provides concrete ways forward in the ongoing debate on conflicts of rights at Europe's human rights court.'

This paper analyses the question of relative authority and separation of powers with regard to the European Court of Human Rights (ECtHR). Focus is on the specific processes that might perpetuate and even bolster authority in complex regimes of global governance such as the ECtHR. Building on a previous work on the variable authority of ICs, and notably how contexts shape that authority, the paper is particularly interested in how inter-institutional processes and feedback mechanisms operate in practice and create workable ensembles of institutions exercising relative authority. The chapter’s empirical analysis focuses on four instances of law-politics interfaces in the evolution of the ECtHR. It highlights particular moments in which the authority of the ECtHR has been challenged and how such challenges have either been overcome or resulted in insolvable collusions between the Court and the Member States. The analysis concludes that the current informal system of checks-and-balances in some cases is insufficient for avoiding clashes over the Court’s interpretations of the ECHR. Against the background of the empirical analysis, the paper develops original proposals for institutional reform that might help create better feedback loops in the area of European human rights. These include a different role for the Committee of Ministers, a greater participation and transparency with regard to proceedings before the Court, and the introduction of a form of appeals system. All of these proposals can be introduced in the current system with only minor amendments to the existing framework.

The issue of causation has been surprisingly overlooked in the area of international human rights law. The objective of this article is to fill this gap by investigating how the ECtHR finds causal connections between harm and state omissions within the framework of positive obligations. By engaging with causation, this article seeks to partially address the widely voiced concerns about the indeterminacy that clouds positive obligations in the case law. Four main arguments are articulated. First, assessments whether the state knew, or ought to have known, about the (risk of) harm, whether demanding state action is reasonable and whether harm is caused by state failures, are merged and affect each other in the enquiry as to whether the state has failed to fulfill its positive obligations. Second, the level of state control structures lines of causation. Third, since the question as to how much control the state should have could imply normative judgments in which the Court might not want to see itself implicated, and since empirical and epistemological uncertainly might hamper assessments of causation, the Court has recourse to techniques to avoid direct resolution of these normative issues and uncertainties. Two such techniques are discussed: domestic legality and national procedural guarantees. Finally, even in cases where omissions might be causative to harm, additional considerations might militate against finding the state responsible under the ECHR: reasonableness, no immediacy of the harm and no systemic failures.

The European Court of Human Rights (ECHR) searches for human rights policies that are adopted by the majority of the countries in Europe. Using a doctrine known as "emerging consensus," the court then imposes these policies as an international legal obligation on all the countries under its jurisdiction. But the ECHR sometimes defers to countries, even if their policies fall short of the standard accepted by most of the countries in Europe. This deference is accomplished by using the so-called "margin of appreciation" doctrine. Naturally, emerging consensus and margin of appreciation are often conceived as competing doctrines: the more there is of one, the less there is of another. This paper suggests a novel rationale for the emerging consensus doctrine: the doctrine can allow the ECHR to make good policies by drawing on the independent decision-making of many similar countries. In light of that, the paper demonstrates that a correct application of the margin of appreciation doctrine actually helps emerging consensus reach optimal results, by giving countries an incentive to make their policies independently.

An important ‘stress test’ for regional human rights courts would be to see how well such courts perform when faced with authoritarian, human rights-violating regimes that they are supposed to hinder or constrain. These states are not only subjects of the court, but also its masters insofar as they enjoy various forms of control and accountability mechanisms that may constrain the court’s independence. The article argues that, at least in the case of the European Court of Human Rights (ECtHR), its precarious ‘constrained independence’ should be modified to enhance its impact even under such circumstances. Such changes could strengthen the ECtHR’s impartial and independent role without running the risk of turning it into a so-called ‘juristocracy’ - subjecting European states to the arbitrary rule of international judges.

This article discusses to what extent and how the European Court of Human Rights (ECtHR) has initiated and engaged in domestic judicial reforms. It shows that the judgments of the Strasbourg Court, rather than having effects only with respect to the individual whose rights have been violated, have much deeper structural effects in the design and operation of domestic judicial systems. This article argues that this phenomenon goes rather unnoticed, but it has deep implications for both the developing and developed European democracies. To demonstrate this phenomenon, this article assesses the impact of the ECtHR on three judicial design issues. First, it illustrates how the ECtHR has challenged the role of the advocates general. Second, it explains how the ECtHR has gradually curbed the jurisdiction of military courts both over civilians and over military officers, which has brought these courts to the brink of their abolition. Finally, it outlines how the ECtHR in its judgments regarding the disciplining of judges empowers the judiciary at the expense of other political institutions within the State. Based on the analysis of these three judicial design issues, we conclude that the Strasbourg Court is affecting the internal architecture of domestic judiciaries as it gradually endorses the unification of court administration and changes the power structures within the judiciary.

Using two concrete cases - Jaloud v. the Netherlands and S.A.S. v. France - the book takes the reader through all stages of a procedure, explaining how to use and submit the various documents necessary in a case. A very useful how-to book. This is the abstract:

'Ars Aequi Procesdossiers (case files) are written primarily to give the reader insight into different legal procedures. Relying on real case files, it is explained step by step how an actual procedure develops. The Ars Aequi Procesdossiers contain original procedural documents which, together with the accompanying text, draw the reader’s attention to the main features of the relevant laws. In this way, the material is brought to life.

This volume describes the application and intervention procedure before the European Court of Human Rights. Prior to presenting the case files, the Court’s organisation and procedure is introduced and the rules applicable to the application and intervention procedure are described in some detail. The documents making up the case files include correspondence of the applicant, the intervener and the Court, as well as decisions, judgments and related procedural documents. The documents are preceded by a short introduction explaining to which stage of the procedure a document belongs.'

Friday, 15 September 2017

This Summer, Oxford University Press has released the fourth and revised edition of Taking A Case to the European Court of Human Rights, the much appreciated handbook written by professor and practitioner Philip Leach (Middlesex University and European Human Rights Advocacy Centre). It covers both all phases of Strasbourg proceedings, from lodging an application to the enforcement of judgments. It covers all the key reforms (both those instituted and those pending) since the last edition of 2011. Through its index, its table of cases and its clear and logical structure, the book is an excellent and very up-to-date way into the judicial practice and case-law of the Court. in doing so it is both a how-to-do for practitioners as well as a thorough introduction to the system for students and researchers. Congrats, Philip! This is the abstract:

'This book provides comprehensive coverage of the law and procedure of the European Court of Human Rights. It incorporates a step-by-step approach to the litigation process, covering areas such as lodging the initial application, seeking priority treatment, friendly settlement, the pilot judgment procedure, just satisfaction, enforcement of judgments, and Grand Chamber referrals.

This new edition has been fully revised to take account of the latest developments in the Court's practice since 2010, including: the introduction (in 2014) of a mandatory application form; the updated Court Rules and practice directions; a more expansive approach to interim measures; the application of the 'no significant disadvantage' admissibility test and further applications of the exhaustion of domestic remedies rule and the six months' time limit; the steep rise in the use of unilateral declarations in striking cases out; developments in the use of 'Article 46' and pilot judgments; and the more extensive application of non-pecuniary measures of redress (including reinstatement to employment, disclosure of information and the protection of witnesses).

This edition includes an expanded and up-to-date article-by-article commentary on the substantive law of the European Convention. Issues covered by the recent case-law include secret rendition, restrictions on in vitro fertilization, medical mistreatment, the treatment of migrants at sea and asylum procedures, states' extra-territorial jurisdiction, same-sex partnerships, and discrimination. There is new law on the rights of suspects, defendants and life sentence prisoners, and the duties owed to the victims of domestic violence, domestic servitude, and human trafficking. With such vast coverage and accessibility, this book is indispensable for anyone practising in this field.'

Monday, 4 September 2017

Third party interventions are a key way for the European Court of Human Rights to receive information beyond the input it receives from the parties in the procedure (applicant and state). How influential such interventions actually are was until now a matter of educated guesses for Strasbourg Court watchers. But now, there is a study which may shed some empirical light on the issue. Nicole Bürli (currently human rights adviser with the World Organisation Against Torture) has just published Third-Party Interventions before the European Court of Human Rights with Intersentia. As a thorough and systematic overview, it offers great insights in how such interventions have worked in practice and how different types of interventions should be distinguished. This is the outline of the book:

'Over the past decades the European Court of Human Rights has been increasingly engaged in constitutional decision-making. In this time the Court has decided whether abortion, assisted suicide, and surrogate motherhood are human rights. The Court’s judgments therefore do not just affect the parties to a particular case, but individuals, other member states, and often European society at large. Unsurprisingly, a variety of entities such as non-governmental organisations, try to participate in the Court’s proceedings as third-party interveners. Acknowledging a certain public interest in its decision-making, the Court accepted the first intervention in 1979. Since that time, interventions by individuals, member states and non-governmental organisations have increased. Yet despite this long-standing practice, third-party interventions have never been fully theorised.

Third-Party Interventions before the European Court of Human Rights is the first comprehensive and empirical study on third-party interventions before an international court. Analysing all cases between 1979 and 2016 to which an intervention was made the book explores their potential influence on the reasoning and decision-making of the Court. It further argues that there are three different type of intervention playing different roles in the administration of justice: amicus curiae interventions by organisations with a virtual interest in the case which strengthen the Court’s legitimacy in its democratic environment; member state interventions reinforcing state sovereignty; and actual third-party interventions by individuals who are involved in the facts of a case and who are protecting their own legal interests. As a consequence, the book makes a plea for applying distinct admissibility criteria to the different type of interventions as well as a more transparent procedure when accepting and denying interventions.

Dr Nicole Bürli has been a human rights adviser with the World Organisation Against Torture since 2014. Prior to this, she was a research associate at the University of Zurich (2008–2012) and a visiting fellow at the University of Copenhagen (2012) and the University of Cambridge (2013). Nicole Bürli holds law degrees from the University of Bern and the University of Zurich.'

Thursday, 31 August 2017

Returning after the summer break, it is my pleasure to announce that the MOOC we developed here at the Netherlands Institute of Human Rights (SIM) at Utrecht University, featuring colleagues Janneke Gerards, Paulien de Morree and myself, has - since its start last year - attracted over 10,000 participants from across the globe. It is humbling to realise one reaches so many more students this way than with all one's face-to-face teaching combined. Next week, on Monday 4 September we will launch its fourth edition. Enrollment can be done here. This is the official announcement:

'For the fourth time Utrecht University launches the highly successful MOOC 'Human Rights for Open Societies - An Introduction into the European Convention on Human Rights'. This course is for everyone who is interested in the protection of human rights and the idea of open societies. More than 10.000 enthusiastic learners participated in the course so far. The new edition of the MOOC starts on September 4, 2017.

Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal.

In this course, Prof Antoine Buyse (Human Rights), Prof Janneke Gerards (Fundamental Rights Law) and Dr Paulien de Morree introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. This international treaty is one of the most successful instruments for protecting human dignity and it is a crucial tool for achieving an open society. In this course you will discover what this treaty is and how it aims to advance human rights and the idea of an open society in Europe.

You will learn when and how people can turn to the European Court of Human Rights to complain about human rights violations and how the Court deals with the difficult human rights dilemmas of today. You will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. This course also addresses the rights of migrants, refugees, and other vulnerable groups. And, of course you will see whether and under what conditions human rights may be restricted.

Find more information about the MOOC Human Rights for Open Societies at Coursera.

Has the Brighton Declaration produced a New Deal on European human rights in terms of engendering a new and more central role to national legal and political institutions? A greater subsidiarity? Against the backdrop of a systematic exploration of the case law of the European Court of Human Rights (ECtHR), the articles concludes that the ECtHR is indeed providing more subsidiarity following the Brighton Declaration. It does so by a greater use of the terms “margin of appreciation” and “wide(r) margin,” and particularly with regard to two areas of law: Art. 8 on the right to privacy and Art. 35 on access to the Court. However, as the article further demonstrates, this increase in subsidiarity is very uneven across the member states. The old Western member states generally benefit far more from these new directions in the ECtHR’s jurisprudence. But contrary to popular belief, vocal critiques of the system are not given more deference according to this analysis. A final more general conclusion follows from these findings, namely that the ECtHR is receptive to political signals and does not operate in isolation from politics as it is often claimed. Although currently merely soft law documents, the Brighton Declaration and associated Protocols have triggered change at the Court in the direction set out in these documents and events. This has theoretical implications for the understanding of the evolution of international courts.

* A recent conference in Strasbourg entitled “Promoting dialogue between the European Court of Human Rights and the media freedom community. Freedom of expression and the role and case law of the European Court of Human Rights: developments and challenges" has led to an E-Book by the European Centre for Press and Media Freedom. The online publication deals with : (1) defamation, privacy and the processing of personal data, (2) investigative journalism in relation to news gathering, access to official documents and the importance of the protection of sources and whistle-blowers, as well as (3) the right to protest and the role of the media during protests.

* And finally, a short report by Anne-Katrin Speck of the conference on Principled Resistance and the ECHR, which took place early June at the University of Konstanz, where I participated in the final round table.

Friday, 30 June 2017

* Sietske Dijkstra, 'The Freedom of the Judge to Express his Personal Opinions and Convictions under the ECHR', pp.1–17:

The freedom of the judge to express his personal opinions and convictions is limited by his special position. The question arises where these limits lie: what are the possibilities for judges to express their personal views on religious, political or other subjects, whether it is through speech, writing, wearing religious symbols or membership of an association or church? In this article the limits of the freedom of the judge will be studied as they appear from the case law of the ECtHR. Two types of cases from this case law are relevant for this subject: cases based on complaints from judges about a violation of their rights under Article 9-11 ECHR and cases based on complaints from litigants and suspects about a violation of their right to a fair trial under Article 6(1) ECHR. The question is asked how the limits of judicial freedom are defined in the case law of the ECtHR and where these limits lie.

This article discusses to what extent and how the European Court of Human Rights (ECtHR) has initiated and engaged in domestic judicial reforms. It shows that the judgments of the Strasbourg Court, rather than having effects only with respect to the individual whose rights have been violated, have much deeper structural effects in the design and operation of domestic judicial systems. This article argues that this phenomenon goes rather unnoticed, but it has deep implications for both the developing and developed European democracies. To demonstrate this phenomenon, this article assesses the impact of the ECtHR on three judicial design issues. First, it illustrates how the ECtHR has challenged the role of the advocates general. Second, it explains how the ECtHR has gradually curbed the jurisdiction of military courts both over civilians and over military officers, which has brought these courts to the brink of their abolition. Finally, it outlines how the ECtHR in its judgments regarding the disciplining of judges empowers the judiciary at the expense of other political institutions within the State. Based on the analysis of these three judicial design issues, we conclude that the Strasbourg Court is affecting the internal architecture of domestic judiciaries as it gradually endorses the unification of court administration and changes the power structures within the judiciary.

* Thomas Voland and Britta Schiebel, 'Advisory Opinions of the European Court of Human Rights: Unbalancing the System of Human Rights Protection in Europe?', pp. 73-95:

Protocol 16 to the European Convention on Human Rights (ECHR) introduces a mechanism enabling certain domestic courts to seek advisory opinions from the European Court of Human Rights (ECtHR) as part of broader reform efforts to enhance the efficiency and legitimacy of the Court. This article provides an overview of the functioning of the Court’s new advisory capacity, explains the context of the initiative and gives examples of its intended implementation at the national level. While the new tool was primarily designed to enhance the relationship between national courts and the ECtHR, the recent opinion of the Court of Justice of the European Union (CJEU) on the accession of the European Union (EU) to the ECHR has revealed a rather unexpected dimension of the mechanism contained in Protocol 16. The CJEU declared the Draft Accession Agreement unlawful, inter alia, due to an alleged threat posed by the advisory mechanism to the autonomy of EU law and its possible interference with the preliminary ruling procedure before the CJEU. In this article, the merits of these arguments are also examined.

* Lize R. Glas, 'The European Court of Human Rights’ Use of Non-Binding and Standard-Setting Council of Europe Documents', pp. 97-125:

In many judgments, the European Court of Human Rights lists relevant international materials and, in some of those judgments, it uses these documents when determining whether the European Convention on Human Rights has been violated. These materials are often non-binding and standard-setting documents that originate in the Council of Europe (CoE), the Court’s organizational framework. This article analyses the Court’s practice of using such documents, based on a sample of 795 judgments. The analysis serves to provide an answer to the questions of how and why the Court refers to and relies on these documents. More specifically, the article describes the number of judgments and the importance of the judgments in which the Court cites a CoE document, as well as the type of organs and the different documents cited. The analysis continues with a description of the part in which the Court’s determination on the question of a violation the CoE documents appear and also addresses the purposes for which the Court seems to use the materials. Lastly, insight is provided into the relevance of the documents to the Court’s reasoning and explanations are given for why the Court does, or does not, follow the standards formulated in a document.

* Kai Ambos, 'The Crime of Genocide and the Principle of Legality under Article 7 of the European Convention on Human Rights', pp. 175-186:

In Vasiliauskas v Lithuania the Grand Chamber of the European Court of Human Rights (ECtHR) delivered a fundamental judgment concerning the general question as to how new regimes should deal with grave human rights violations which occurred under the former regime. The question was further aggravated by the fact that the former regime was the then Soviet occupation force in the territory of the Baltic states and the new regime (Lithuania) came into existence with the dissolution of the former Soviet Union as one of the many consequence of the fall of the Berlin Wall. The applicant worked for the Soviet secret service at the time and killed, in 1953, two members of the Lithuanian partisan movement. He was convicted of genocide by the Lithuanian domestic courts. The Grand Chamber held, with a slim majority of nine to eight votes, that this conviction violated Article 7 of the European Convention on Human Rights (ECHR). After a summary of the main arguments of the majority and minority opinions in Section 2, the article will, in Section 3, consider five problems: the peculiar structure of the genocide offence, the concepts of ‘foreseeability’ and ‘genocide’, the concepts of ‘national groups’ and ‘armed resistance movement’, the role of judicial interpretation and last, but not least, the general role of international courts in the treatment of such sensitive events of the past.

And the June issue of the same Review (No. 2) includes:

* Başak Bağlayan and Johannes Hendrik Fahner, '‘One Can Always Do Better’1: The Referral Procedure before the Grand Chamber of the European Court of Human Rights', pp. 339-363:

The referral procedure provided for by Article 43 of the European Convention on Human Rights allows a rehearing of cases by the Grand Chamber of the European Court of Human Rights after delivery of a Chamber judgment. The widely criticized procedure was adopted as a political compromise between the proponents of two-tier review and those who considered that a single instance review should suffice. This article discusses how the Court has conducted its review under Article 43. It analyses the judgments issued upon referral in order to identify whether the Court understands the referral procedure as a de novo consideration of the entire case or as a more restricted appeal against the Chamber judgment. It is concluded that the Grand Chamber’s jurisprudence combines elements of both approaches, which leaves the function of Article 43 unclear.

The literature on the “procedural turn” in the case-law of the European Court of Human Rights (ECtHR) is divided on the question of whether positive inferences from due procedural diligence at the national level can go so far as to bar the Court’s own normative engagement on the issue in question (complete deference). After giving a conceptual clarification of the procedural turn and the margin of appreciation doctrine, this article reports a case law analysis which establishes that while the ECtHR increasingly relies on the quality of domestic procedures under the systemic element of the margin of appreciation, this usually only leads to partial deference as the Court also engages in its own normative assessment on the merits of the case. Interestingly, however, the case-law analysis also brings three distinct lines of case law to light (the “fourth instance doctrine”, legitimate aims behind limitations on rights, and balancing rights) where the systemic margin of appreciation has been relied upon to create rebuttable presumptions of European Convention on Human Rights compliance, which can effectuate complete deference on certain elements of assessment. The article concludes with some critical comments on complete deference on the proportionality assessments traditionally considered to be at the heart of the Court’s own judicial task.

The Dutch Forced Marriage Prevention Act aims to prevent family reunification of so-called child brides with their husbands in the territory of the Netherlands by no longer recognizing child marriages concluded abroad as legal marriages. Although it can be argued that the Netherlands has an obligation not to recognise a child marriage concluded abroad, it is disputable whether the Forced Marriage Prevention Act is in line with other human rights obligations. This article analyses whether the rights of child brides are violated under Articles 8 and 3 of the European Convention on Human Rights, if their family reunification application is denied. Although the minor spouse is most likely residing outside the territory of the Netherlands, a family reunification procedure brings her nevertheless within its jurisdiction, and as such within the sphere of the European Convention on Human Rights.

Friday, 16 June 2017

Last month, the Legal Affairs Committee of Parliamentary Assembly of the Council of Europe (PACE) discussed the newest report on implementation of the European Court's judgments. This 9th report was made by Pierre-Yves Le Borgn’ and, as always, is a valuable resource to get insight into the many problems in giving follow-up to the judgments of the Court. The number of judgments pending at the Committee of Ministers has now almost reached 10,000. More worrying than that is that there is an increase in the number of leading cases, in which states are really required to do something new to remedy a situation and usually change their laws or policies structurally, that have not yet been implemented for more than five years. Here, it clearly is not only about lack of capacity within national jurisdictions or slow procedures of amending legislation, but also about political unwillingness. As the Committee noted, it does not stop there. There also are "attempts made to undermine the Court’s authority and the Convention-based human rights protection system."

As in earlier years, a relatively small number of states causes most problems in this respect. This time - and close observers may not be surprised - Italy, the Russian Federation, Turkey, Ukraine, Romania, Hungary, Greece, Bulgaria, the Republic of Moldova and Poland are the main problematic countries.

The appendix to the report give a detailed overview of where matters stand in relation to a number of leading cases in a large number of countries.

Friday, 9 June 2017

The European Court of Human Rights announced last week that it has adopted, as of this month, a new procedure which allows more detailed reasoning to be given in single-judge decisions. Ever since the single-judge procedure was introduced through Protocol 14 in 2010, the Court had been applying a very summary procedure to deal with the large backlog of tens of thousands of cases. Both by practitioners and academics this state of affairs, born out of necessity, has often been criticised as it gave no clarity or reasoning to people whose applications were rejected by single-judge decisions.

Two years ago, the State Parties at the High Level Conference in Brussels on the Convention, welcomed the Court's intention "to provide brief reasons for the inadmissibility decisions of a single judge, and invites it to do so as from January 2016." It has taken a bit longer, but now that - in the Court's own words - "the backlog has been eliminated", more detailed reasoning will be given, but still not in all cases. This is how the procedure will unfold:

"Instead of a decision-letter, applicants will receive a decision of the Court sitting in single judge formation in one of the Court’s official languages and signed by a single judge, accompanied by a letter in the relevant national language. The decision will include, in many cases, reference to specific grounds of inadmissibility. However, the Court will still issue global rejections in some cases, for example, where applications contain numerous ill-founded, misconceived or vexatious complaints."

This still may not satisfy everyone, but it at least come along some of the road. As the court indicated in its press release, it has to "strike a balance between addressing a legitimate concern about the lack of individualised reasoning and maintaining an efficient process for handling inadmissible cases so as not to divert too many resources from examining potentially well-founded cases." The very fact that this is now possible, should be a good sign.

Friday, 19 May 2017

Please find a number of new ECHR readings from journals and blogs below:

* Vassilis P. Tzevelekos, 'The Al-Dulimi Case before the Grand Chamber of the European Court of Human Rights: Business as usual? Test of Equivalent Protection, (Constitutional) Hierarchy and Systemic Integration', Questions of International Law, no. 38 (2017).

Friday, 12 May 2017

Marco Duranti, a historian based at the University of Sydney, has written an important new study about the origins of the European Convention of Human Rights. The book, published by Oxford University Press, is entitled 'The Conservative Human Rights Revolution -European Identity, Transnational Politics, and the Origins of the European Convention'. Based on extensive archival research, it proposes that - contrary to the image, in the eyes of many, of the Court in the past decades as a progressive developer of human rights - the original Convention negotiations were dominated by political conservatives, who saw the Strasbourg system as a safeguard for stability and containment rather than as a tool for change. This is the abstract:

'The Conservative Human Rights Revolution radically reinterprets the origins of the European human rights system, arguing that its conservative inventors envisioned the European Convention on Human Rights (ECHR) not only as an instrument to contain communism and fascism in continental Europe, but also to allow them to pursue a controversial political agenda at home and abroad. Just as the Supreme Court of the United States had sought to overturn Franklin Roosevelt's New Deal, a European Court of Human Rights was meant to constrain the ability of democratically elected governments to implement left-wing policies that conservatives believed violated their basic liberties, above all in Britain and France.

Human rights were also evoked in the service of reviving a romantic Christian vision of European identity, one that contrasted sharply with the modernizing projects of technocrats such as Jean Monnet. Rather than follow the model of the United Nations, conservatives such as Winston Churchill grounded their appeals for new human rights safeguards in an older understanding of European civilization. All told, these efforts served as a basis for reconciliation between Germany and the rest of Europe, while justifying the exclusion of communists and colonized peoples from the ambit of European human rights law.

Marco Duranti illuminates the history of internationalism and international law — from the peace conferences and world's fairs of the early twentieth century to the grand pan-European congresses of the postwar period — and elucidates Churchill's Europeanism, as well as his critical contribution to the genesis of the ECHR. Drawing on previously unpublished material from twenty archives in six countries, The Conservative Human Rights Revolution revisits the ethical foundations of European integration after WWII and offers a new perspective on the crisis in which the European Union finds itself today.'

Friday, 5 May 2017

On 15 May, the Bingham Centre for the Rule of Law and Leicester Law School are organizing an event in London, entitled 'Implementation of the European Court of Human Rights: Opportunities and Challenges for he Rule of Law'. The event will focus on the United Kingdom's implementation record and more broadly on the impact of Strasbourg judgments in the UK. According to the organizers, the speakers will "consider the UK government's recent report 'Responding to Human Rights Judgments' which outlines its position on the implementation of the Court's judgments and responds to recommendations made by the Joint Committee on Human Rights in its 2015 scrutiny report 'Human Rights Judgments'. We will also hear a UK government perspective "from the inside" on the Committee of Ministers and its work supervising the execution of judgments. Speakers will then consider the wider picture of implementation across the member states and will reflect on the process for the execution of judgments and the role of the Committee of Ministers in this regard."The event will be held at the British Institute of International and Comparative Law in the early evening (at 17h30). Speakers will include Ed Bates, Nuala Mole and Philip Leach. For more information, see here.

Tuesday, 2 May 2017

My colleague, SIM fellow and Utrecht University, Professor Janneke Gerards and Eva Brems of Ghent University have published a co-edited volume entitled 'Procedural Review in European Fundamental Rights Cases' with Cambridge University Press. With a wide range of chapters, it unites and compares the approaches of the European Court of Human Rights with those of other bodies. This is the abstract:

'Traditionally, courts adjudicate fundamental rights cases by applying substantive tests of reasonableness or proportionality. Increasingly, however, European courts are also expressly taking account of the quality of the procedure that has led up to a fundamental rights interference. Yet this procedural review is far from uncontroversial. There still is a lack of clarity as to what 'procedural review' really means, what its potential for judicial decision-making is, how it relates and should relate to substantive review, and what its limitations are. Featuring contributions from experts in the field, this book is the first in-depth study into procedural review, considering the theoretical and conceptual issues at play, as well as the applicability of procedural review in different legal systems. It will therefore be of great importance to scholars and practitioners interested in fundamental rights adjudication in Europe, judicial reasoning and procedural justice'

"In this article the influence of the European Court of Human Rights’ case-law on the United Nations Human Rights Committee will be analysed. This particular choice of supervisory bodies enables us to trace such potential influence adequately since both the Court and the Committee supervise treaties which mainly concern civil and political rights: the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). Both are legally binding elaborations of the Universal Declaration of Human Rights. Many of the rights in the two treaties are, as a consequence, formulated in a similar way. This facilitates a systematic comparison between the case-law of the two supervisory institutions. To map the possible influence of the Court’s jurisprudence on the Committee’s work as precisely and concretely as possible, I will focus on the prohibition of torture and inhuman and degrading treatment."

"Inherent to and at the very core of the right to a fair criminal trial under Article 6 of the European Convention on Human Rights is the concept of equality of arms (procedural equality) between the parties, the construct given detailed and innovative treatment in this book.

As a contextual prelude to more specific analysis of this concept under Article 6, certain influential historical developments in trial safeguards which mark a centuries-long evolution in standards of, and the value attributed to, procedural fairness are identified to establish a background to Article 6 before its inception. Thereafter, the book offers a thorough theoretical insight into equality of arms, investigating its multi-faceted value, identifying its contemporary legal basis in Article 6 and in international law, and defining its fundamental constituent elements to elucidate its nature, including its underpinning relationship with Article 6(3). The book argues that the most important of these constituent elements––the requirement of ‘disadvantage’––is not equated by the European Court of Human Rights with inequality in itself, which would be a dignitarian interpretation, but with inequality that gives rise to actual or, in some circumstances, inevitable prejudice. This proposition is the golden thread running through the analytical heart of the book’s survey of case-law in which the Court’s approach to procedural equality in practice is demonstrated and assessed within the context of the Article 6(3) rights to challenge and call witness evidence, to adequate time and facilities, and to legal assistance.

The end result is a book for both scholars and practitioners that will not only forge an enhanced general understanding of procedural fairness safeguards and standards, including from a historical perspective, but also provoke, more specifically, new reflection on the concept of equality of arms."

Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And often, minorities are excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it often is an uphill battle to work towards that ideal.

The course will help participants equip themselves and learn more about what human rights are and how they work. They will learn when and how people can turn to the European Court of Human Rights to complain about human rights violations. And they will learn when and how the Court tries to solve many of the difficult human rights dilemmas of today. The course looks at, amongst others, the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. The rights of migrants, refugees, and other vulnerable groups will also be addressed in this MOOC. Finally, the course will look into the question of whether it is possible to restrict rights and under what conditions.

Is this a course for you?

This course is open to everyone interested in the protection of human rights and the linkages with open and democratic societies.

Interested in participating?

The MOOC ‘Human Rights for Open Societies – An Introduction to the European Convention on Human Rights’ will start on May 8, 2017.

Enroll here on Coursera. Enrollment is for free – participants only pay a fee if they want to obtain a certificate at the end of the course.

'Non-execution of the judgments of the European Court of Human Rights is a matter of serious concern. In order to address it, the reasons for and dynamics of non-execution need to be fully considered. This paper engages with non-execution by sketching the underpinning issues that help to explain it and, we argue, must shape our responses to it. Through this engagement, we conclude that non-execution is properly understood as a phenomenon that requires political rather than legal responses. This calls into question the usefulness of the infringement proceedings contained in Article 46(4) of the Convention and which it has recently been suggested ought to be embraced in attempts to address non-execution. We argue that, even if the practical difficulties of triggering Article 46(4) proceedings could somehow be overcome, the dynamics of non-execution suggest that such proceedings would be both futile and counterproductive, likely to lead to backlash against the Court and unlikely to improve States’ execution of its judgments.'

'By reconsidering the definitions of human trafficking, slavery, servitude and forced labour, Vladislava Stoyanova demonstrates how, in embracing the human trafficking framework, the international community has sidelined the human rights law commitments against slavery, servitude and forced labour that in many respects provide better protection for abused migrants. Stoyanova proposes two corrective steps to this development: placing a renewed emphasis on determining the definitional scope of slavery, servitude or forced labour, and gaining a clearer understanding of states' positive human rights obligations. This book compares anti-trafficking and human rights frameworks side-by-side and focuses its analysis on the Council of Europe's Trafficking Convention and Article 4 of the European Convention on Human Rights. With innovative arguments and pertinent case studies, this book is an important contribution to the field and will appeal to students, scholars and legal practitioners interested in human rights law, migration law, criminal law and EU law.'

'The present paper aims to provide an analysis of the first major judgments of the Strasbourg Court which usefully shed light on the underlying, long-standing systemic failures of the Greek rule of law. The author argues that these judgments are in fact only the tip of the iceberg. For this the paper looks into the process of supervision of these judgments’ execution by Greece, which is pending before the Council of Europe Committee of Ministers, as well as into alarming reports issued notably by CPT as well as by the Greek Ombudsman. The paper also highlights the question of racial violence that has not been so far the subject of analysis in the Court’s judgments concerning ill-treatment in Greece. However, a number of reports, especially the annual reports of the Greek Racist Violence Recording Network since 2012, record numerous cases of racist violence by law enforcement officials targeting migrants and the ineffective responses by the administrative and judicial authorities. The paper’s concluding observations provide certain recommendations in order to enhance Greek law and practice and eradicate impunity.'

* The European Court's proceedings of its annual seminar 'Dialogues Between Judges', at the opening of the court's judicial year. are available on a dedicated web page.